President Trump’s Executive Order to relieve religious organizations of regulatory limits on their political activities came and went with little stir. It was widely seem to be lacking in content. David French, writing in The National Review, was harsher, pronouncing it "worse than useless."

Aimed at the Johnson Amendment, the Order directs the Secretary of the Treasury not to take "any adverse action" against a 501(c) organization speaking on political issues "from a religious perspective." But commentators correctly observed that an Executive Order cannot undo a statute, and that the Order confines its directives to actions by the Secretary "to the extent permitted by law" or "consistent with law." Translated into its simplest terms, the Order requires the Secretary to do what he can if the law allows it, and because the law in question is the Johnson Amendment, then the President has, in effect, demanded that the Secretary ease restrictions “to the extent permitted” by the Johnson Amendment. This is an unusual way of taking on the Amendment.

But if we look beyond the murky conception behind the Order and its somewhat tortuous wording, and consider what it might mean in practice, then it seems more consequential--at least in the next four years.

Long in the field of campaign finance, well versed in its triumphs and tribulations, Larry Noble of the Campaign Legal Center objects strongly to the suggestions for disclosure reform I co-authored with Professor Samuel Issacharoff.  It’s all a magic trick, he argues, that accomplishes the reverse of its stated intention: it moves contributions into the dark, raises the risk corruption and disregards the lessons of Watergate.  The public is not “gullible”: it won’t buy it.

It is difficult not to imagine that Mr. Noble is engaged in theater of his own, something like the aerial feat performed yesterday by the mailman in a gyrocopter who touched down on the Capitol grounds with a similarly passionate appeal for campaign finance reform.  This gentleman, undoubtedly sincere but less clearly prudent,  entitled his project “Kitty Hawk”, after the Wright Brothers’ fabled flight in North Carolina in 1903.  Larry, if he were maneuvering a craft, might have  named it “Watergate," and he would have refreshed the message by 70 years, with only another four decades to go to cross over into the current century and to the present time.

Writing off the Koch announcement of massive 2016 spending, Ron Fournier urges that we be realistic about campaign finance reform in the 21st century: no limits, just instant disclosure. He seems to be salvaging what he can from the current mishmash of changes in political practices, outdated campaign finance requirements and increasingly unsparing limits on Congress's constitutional authority. Without a sharp focus on disclosure, he argues, the 2016 election will go largely dark.

Fournier’s analysis has two considerable virtues: a call for the debate to adjust to constitutional and political realities and an emphasis on single-minded priority in the reform of the law. The debate is stuck, and one reason is that a fair number of interested observers are dedicated to fighting the same arguments heard since the 1970s. A whole host of objectives are being kept artificially alive for discussion. Political spending is to be reduced and the prohibition on corporate spending restored. Independent spending is to be curtailed because some of it is suspect, gutted by disreputable, if not invariably illegal, forms of coordination. Political discourse is being poisoned by attack advertising.

And, of course, there is too much "dark money" and disclosure law should be strengthened against it. Here is where Fournier recommends that reform energy be expended.

The authors of the Bright Line Project proposal for ferreting out and regulating 501(c)(4) political intervention have given the matter a considerable amount of thought and have submitted to the IRS a detailed proposal. In a number of respects, the approach that they originally announced has changed. Its purpose, however, remains one of offering clarity where now there is very little, much to the frustration of practitioners looking to offer clear guidance to their clients. It is a worthy project and addresses a major problem: no one knows what distinguishes social welfare from electioneering activity, and the consequences of the confusion have been plain for all to see.

At the same time, the proposal has to answer the question of whether it is possible for the Internal Revenue Service to tackle questions like this with a reasonable prospect of general public acceptance and confidence. There is reason to doubt it. For as noted in analysis of an earlier Bright Line Project proposal, and as seems still true in this revised version, the agency would have considerable discretion in deciding whether 501(c) communications have crossed into the restricted political zone. And this task—operating within the political world—is one which tax agency officials are not trained or well suited for, nor expected to be.

“He just believes what people tell him”

David Grant speaking of his father Woody

“Nebraska” (2013)

Paul Ryan contends that a posting here misrepresented the Campaign Legal Center's views on the proposed IRS tax-exempt political activity rules.  He denies that, in pressing for fully disclosed 501(c)(4) ad funding, the Center is hoping to diminish the volume of “attack ads.”  His organization’s “whole” and only point, Ryan insists, is information to the voters about who is paying for the ads.  Quelling negative campaign speech is not their concern, only “promotion of transparency.” An able and energetic proponent of reform, Ryan deserves a further explanation of why someone might reach a different conclusion about the various concerns moving the Center on disclosure issues.